COVID-19: automatic unfair dismissal and refusal to allow homeworking
Moore v Ecoscape UK Ltd
An employee had not been automatically unfairly dismissed because of her employer’s refusal to allow her to work from home during the pandemic. Her belief that there were circumstances of serious and imminent danger was not objectively reasonable given that her employer had assessed the risks and addressed the need for increased levels of hygiene and social distancing.
Ms Moore had worked, in a sales and admin role, for Ecoscape for less than two years at the date of her dismissal. Ecoscape is a small business with around 20 employees.
At the start of the first national lockdown in March 2020, Ms Moore was furloughed. She was not in an at-risk category and had not been instructed to shield. In mid-April Ecoscape decided to reopen, as it was permitted to do, with all necessary safety measures in place. Ms Moore was unhappy at being asked to return to work and raised the issue of working from home. She took some paid and unpaid leave. Over the next month Ecoscape made strenuous efforts to persuade her to return to the office, highlighting the safety precautions it had taken and offering to put in place extra measures to reassure her. It was explained to Ms Moore why her role could not be performed on a home-working basis. By mid-May, her employer had run out of patience and she was instructed to return to work. Ms Moore refused. Working from home was the only measure she would accept, despite the fact that she’d not specifically detailed what her actual concerns were beyond anxiety at returning to the workplace. She instituted a grievance which took place remotely at the end of May. It was rejected, with Ecoscape stating that it could not facilitate her working from home. In June an appeal against the rejection of her grievance was heard and rejected. Ms Moore was signed off work with stress-related issues and anxiety until August at which point, she resigned. She brought a claim for automatic unfair dismissal under s. 100 of the Employment Rights Act 1996 (ERA).
Under ERA, s. 100, employees are protected from being dismissed for exercising their right to leave their workplace. To gain such protection, employees must have a ‘reasonable belief’ that their workplace poses a serious or imminent threat to them or to others. This is a Day 1 right and employees don’t need two years’ service to bring such a claim.
Dismissing her complaint, the tribunal considered the following:
Did Ms Moore believe there were circumstances of serious and imminent danger?
She did not. Ms Moore’s real issues were not with the workplace in any specific way, but a more general fear about being required to leave the home and her perception that danger was everywhere.
Was Ms Moore’s belief objectively reasonable?
It was not. Ecoscape had engaged with Ms Moore in numerous messages and while there were concerns regarding the original configuration of the office, it did its best to accommodate her concerns, even going so far as to offer her a separate room with her own equipment such as a printer. The staggered shifts were another feature designed to reduce movement within the office. Such appropriate measures rendered Ms Moore’s belief not objectively reasonable.
Could Ms Moore reasonably have been expected to avert the dangers?
Yes - by following the general hygiene guidance provided to all members of the public and the particular measures provided by Ecoscape when returning to work. Sufficient and adequate hygiene measures were in place and Ms Moore could have socially distanced by using the office that she was allocated and attending the shifts on a staggered basis. She could have limited her contact with others, been able to social distance and was even offered part-time work at different times of day to other employees it this was what she preferred. There was no willingness on her part to visit the workplace, to explore compromises and it remained to her, ‘homeworking or nothing’. This was an unreasonable way of averting any danger given the measures being offered by her employer.
Did Ms Moore take appropriate steps to protect herself from the danger?
She did not. She could have embraced the measures proposed by Ecoscape and could have taken advantage of the separate office and staggered hours of work to restrict social contact to protect both her and her family. Simply removing herself from work was not an appropriate step.
Did Ms Moore take appropriate steps to communicate these circumstances to her employer?
No. While she had consistently explained her fears to Ecoscape, a point was reached where Ecoscape had taken all reasonable steps to address her concerns. By the time the grievance had been exhausted, she had been afforded a lengthy period to consider returning to work and to agree appropriate measures to protect her while at work. Ecoscape had responded to her communications, reacted patiently, and allowed her time to regain her confidence. It engaged with her on a regular basis and it was her decision to unilaterally refuse to engage with Ecoscape on a daily basis. Ultimately, she was left with a belief that it was not safe to return to work, but one which would not take a measured reasonable approach towards adjustments being made to support her returning to work.
Link to judgment: https://www.bailii.org/uk/cases/UKET/2021/2417563_2020.pdf
This appears to be the direction of travel for decisions of this kind – where employers have done all they reasonably can to allay any fears the employees have, at the same time as implementing government guidance. In many cases the fear of employees is just a general fear of going out, rather than a belief that the workplace is not safe, preferring to stay cocooned at home and those employers who act patiently and reasonably will not be criticised by the tribunal.